Fief de la Fosse - proposed agreement with Les Pas Holdings Ltd.

STATES OF JERSEY

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FIEF DE LA FOSSE: PROPOSED AGREEMENT WITH LES PAS HOLDINGS LIMITED

Lodged au Greffe on 29th July 2003 by the Policy and Resources Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

(a ) to implement the agreement made on 27th May 2003, by and between Les Pas Holdings Limited,

Her Majesty's Receiver General, the Policy and Resources Committee and Richard Arthur Falle, Seigneur of the Fief de la Fosse as set out in Appendix 1 to the report of the Policy and Resources Committee dated 25th July 2003; and

(b ) to authorise the Attorney General and the Greffier of the States to pass the necessary contracts in

connection with the proposed transaction

POLICY AND RESOURCES COMMITTEE

Note.  The Finance and Economics Committee's comments are to follow.

REPORT

1. T  h is Proposition asks the States toapproveanAgreementwhich, if implemented, would putanendto long-standing litigation relating to the ownership of the foreshore adjacent to the Fief de la Fosse, which stretches from approximately the Dicq at its easternend to Payne Street at its western end. Members will see that oneof the conditions oftheAgreementwas that this proposition wastobe lodged by the 30th June,2003. That date wasextendedbyagreement with Les Pastothe 29th July, 2003.

History

2. T h e States begantoreclaim foreshore immediatelyto the West oftheAlbertPier in 1981. Initially they relied for theirright to do so on a leasebythe Crown to the Publicof all the foreshore ofthe Island with some irrelevant exceptions.Subsequently, the Crown sold the relevant areas offoreshore to the Publicby contracts passed respectively in 1983, 1989 and 1995.
3. P r io r to the reclamation to the Westof the AlbertPier, the States had in the 1960s reclaimedpartsofthe foreshore which had been acquired from the Crown in theareaofLa Collette.
4. I n t he early 1980s, a smallcommercialgroupbecame interested in reclaiming foreshore at La Collette and Havre des Pas and developing the land thus formed into a marina village. Oneofthegroupofpromoters was Advocate R.A. Falle. Advocate Falle had formed the view that underthecustomary law of the Island the foreshore belonged,not to theCrown, but to the Seigneurof the adjoining fief. Accordingly,he acquired the Fief de la Fosse,which adjoins theforeshoreas shown on the mapatAppendix2.The claim to the foreshore was used tosupportthegroup'splans.
5. I n theautumnof1986 the groupmade public theirplanswhichreceivedsomemeasureof public and political support. The group and subsequently Les PasHoldings Limited entered into correspondence with the Receiver General in relation totheclaim to the foreshore.
6. I n 1 987, the grouplodged a planning application for the proposed development. In 1989 they formedthe company,which they called Les Pas Holdings Limited, and the company acquired suchrightsas the Seigneur had in the foreshore.
7. I n December,1989,LesPas Holdings Limitedcommenced an action against the Receiver General on behalf of the Crown and theGreffier of the States on behalf of the Public. The action was by agreementof all parties held in abeyance,asit had been commenced to prevent its becomingtime-barred.The litigation did not begin untilJanuary,1995.
8. T h e action isoneof a type whichisknownasan action pour exhiber titre.Ineffect,it was a claim to the ownershipof the foreshore adjoining a fief known as the Fief de la Fosse. The area extends roughly from Le Dicqto the pointatwhich Payne Street met the beach before the reclamationtookplace to the Westof the Albert Pier. Theboundariesof the relevantarea of foreshore are shown on the map at Appendix 2.
9. T h e litigation hasnow reached thestagewhere there has been a preliminary hearing infrontof the Royal Court. The substantive hearing is yet to come.
10. T h e action was tabled in December1989toprevent its becoming time barred, butbyagreementbetween the parties the litigation did not begin. Instead, both sides continued with theirplans for reclamation.The Les Pas promoters revised theirplans,whilethe States for their part instructed consultantsto prepare a development plan for the whole of the Waterfront between West Park and the Dicq. This plan was debated in the States inNovember 1991. It wasadoptedwithmodificationson the 10th November, 1992.
11. A f ter theWaterfront plan had been received,LesPas discussed the possibility of modifying the plans which it had previously lodged toaccommodate them to the Waterfront plans. It filed amended plans, but the discussionscameto an endin the middleof1993.

12. F o llowing the acceptanceof the WaterfrontPlan,reclamationoftheareaof foreshore West ofthe Albert Pier wascompleted.The States proceeded to plan for developmentofthe land thusformed,and Les Pas instructed architects to prepare a master plan for theareaWestoftheAlbertPier.
13. M eanwhile, both sidestothe litigation had obtainedlegalOpinionsontheownershipof the foreshore. The Crownand the States obtained an Opinion from leading and junior counselinLondon in theautumn of 1990 which supported the claim of the Crown.LesPasconsulted Jersey and leading English counsel whose Opinion supported the claim ofLes Pas. This Opinion wasshowntothedefendants, but the defendants' leading counsel maintained hisformer advice. Accordingly, in December 1993, Les Pas was told that the Policy and ResourcesCommittee had rejected theirclaim.Itwasfollowing that rejection of the claim that Les Pas eventually activated the litigation.
14. A t the date when the reclamationto the West ofAlbert began, and earlier in the 1960s whenreclamation was carried out atLa Collette, the Crown'sownershipof the foreshore was not questioned byanyone, including the Seigneur of the Fief de la Fosseat the materialtimes.Theunchallenged position at that time was that the Crownowned the foreshore,andiftheCrown sold the foreshore to the PublicthePublic becametheownerof it.
15. T h e Les Pas promoters were advisedbyLondonand Jersey counsel that the claim of the Seigneur was a soundly basedclaim.Thecompany only begantopursue the litigation actively when their proposals for the HavredesPasdevelopmentwerenotaccepted.
16. O n ce the litigation was in train the States options were limited.These options were to defend their position; agree that a development could take place at Havre des Pas, which some regarded as environmentally unacceptable; settle the action on unacceptable terms;ornotdefend the action, which would have resulted in the loss of all thereclaimed land which the Publichad acquired from theCrown.
17. T h e conductof the litigation was passedtoCrown Advocate Binnington, whoconfirmed the previous advice, and advised the Policy and Resources Committee that in his opinion the claim ofLesPaswasnot well founded.
18. T h e litigation proceedings have been longdrawn out. Discovery, a proceduralstepwhich has to take place in every action, itself took someyears because of the exceptionalvolume of the documentswhich had to bereadthroughand listed.

Possible Settlements

19. It i s fairto say that therewasan attempt to reach a settlement before the litigation reached its final phase. Somemembersmay recall that in 1997 the then Senator Horsfall, who at that date was President of the Policy andResourcesCommittee, informed the States that hehadreceivedanapproach from LesPas enquiring whether it would bepossible to resolve the claim without further litigation.
20. S o me preliminary talks did take place, but came to nothing. Itwasnotpossible to reach a settlement whichcould realistically be considered by the States.
21. A s a result, the litigation continued.Mr.HowardPage,Q.C.,wasappointedCommissioner to hear the case, and during the courseof 2002 he set a trial date for Spring, 2003. Duringthe first part of 2002,an application was made by the defendants for security for costs. The application was refused by the Commissioner. Thismeant that even ifthe Crown and the States were to win the action, they would probably be unable torecovertheircosts from Les Pas.
22. F o llowing the refusal of the application for securityfor costs, thelegal advisers to the defendants gave further advice to the PolicyandResourcesCommitteeon the question whether it wouldbe in the public interest torevivethe possibility of settling the action whichhadbeenpreviouslyunder consideration.

23. T h e Committeedecided that it would wish to explorethe possibility of settlement. Intensive meetings and discussions followed.Theprogressofthediscussions has been markedby a continual modification of the proposals.
24. T h e area affected by the litigation claim is shown on Appendix 2. It is the crossed hatched area. Originally  it also included the  area immediately to the west of the Albert Pier  within  the western boundary line oftheFief. This is now inpublicownership,because the interests of Les Pas andof the Seigneur were acquiredbycompulsorypurchasein1998/99.Theamountofcompensation to be paid for that interest remains, however,tobe settled. The litigation claimis thus ownershipof the areashown hatched on Appendix 2 and compensation for theareabetween the Albert Pier and the westernboundary of the Fief, whichisalso shown onAppendix2.
25. L e s Pas beganby proposing alternative options. One option was a packagecomprising a 100,000square foot siteatLa Collette II, a 100,000 square foot site at the Esplanade car park for use as a supermarket, and confirmationof a percentage ownership of the foreshoreatHavredes Pas, so that if any future stage there were developmenttherethecompanywould gain some benefit from it.
26. A   second option was the  same industrial  site at La Collette  II,  an approximate one  acre office developmentsite in the Esplanade car park, an areaofapproximately1.1 acres within the Waterfront housing site having a frontagetoopenwater, and the samearrangementin relation to the foreshoreat Havredes Pas.
27. V a luationswereobtained for these siteswhichshowed a totalofvalueofsome £22 million to £25 million plus whatevervalue was allocated to the foreshore interest at Havre des Pas.
28. O p tion 1 is shown onAppendix 3 andOption 2 onAppendix4. Proposed Basis of Settlement
29. N o ne ofthesewere acceptable to the Policy andResourcesCommittee,andthenegotiationscontinued. The Committee offered the sites numbered 11, 12, 13 and 14 on map 2, which is attached to the agreement, but this was not accepted by Les Pas. Eventually, the settlement proposal wasreducedtotwo sites by the Marina for residentialdevelopment.TheseareshownonAppendix 5.
30. A p pendix 6 puts this site into the context of the overall claim. To repeat what has already been said, the entire area claimed inthe litigation is the areaslying between the easternboundaryand the western boundary shown crosshatched, and the areabetweenthe western boundaryandtheAlbert Pier whichis not crossed hatched because the interests have been acquired by compulsorypurchase. It is nevertheless part of the areawhich Les Pasclaims to have acquired from the Seigneur of the Fiefde la Fosse.IfLes Pas were to besuccessful,compensation would havetobe assessed and paid under the compulsory purchaseproceedings.
31. J u st to the west of the western boundary are the sites whichare the subject of the current settlement proposal. It will beseen that they are very smallinrelationtothe entire site. They are indeed smallin relation to the earlier settlement proposals.
32. E v entually,theagreementof 27th May, 2003, was signed by the Committee and Les Pas. Althoughthe agreement bound the Committeetoplace a proposition before the States, it did not, andit could not, bind the Statestoapproving the settlement proposals.
33. T h e termsof the Agreementwhichthe States are askedto approve are set out in Appendix 1. The Agreementcontains a numberof conditions precedentwhichhad to be satisfied by various dates specified in theAgreement. The last ofthe conditions precedenthas to be satisfied by the 31stAugust, 2003, and if the debate takes place inSeptember,2003,it will bebecausethe conditions precedenthave been satisfied.

Why Settle?

34. I n recommending this Agreement to the States, the Committee has considered both time and cost. In doingso, it hasborne in mind that which ever side loses in the Royal Court will almost inevitably appeal to the Court of Appeal, and which ever side loses in the Court ofAppeal will almost inevitably appeal to the Privy Council. Giventhe nature andcomplexityof the case,the litigation couldlast for anotherseven or eight years. Either the States hastoaccept the uncertainty ofownership for this time,or else take further compulsorypurchase action tosecure further areas for development. This wouldbe costly and time consuming.Intermsof cost, the Committee also considered the balance ofthe cost of settling versus the cost of proceeding with the litigation. Takentogether with the legal advice thesetwo considerations tipped the balancein favour ofan early settlement.

Implications of not settling

35. T h e Committee has considered all oftherelevantfacts before recommending the agreementto the States, and in particular –

• t h e l egal advice;

• t h e re are very considerable costs even if the States win (some £7m);

• i f t h e States were to lose the public would lose massive land holdings, including some land on which major assets are situated, and the legal costs would be even greater, (£12 -£14m);

• t h e l egal case could last many years creating very disruptive uncertainty;

• t h e a rea of land proposed for transfer to Les Pas as the basis of the settlement has been valued at £10m.

Cost of Winning

36. E v enif the States win, it will beatconsiderable cost to the publicpurse.Theusual rule is that costs are awarded to thesuccessful party, but in the past this has not invariably been the casewhere the States have been the successful party. Evenif costs areawarded, the likelihood of that order being satisfied is remote. That means that the States will havetobear the costsof having continuedto defend the claim.
37. It i s never an exact science to forecast what the costs ofan action are likely tobe,and the morecomplex and protracted the litigation the more difficult the assessmentandthe greater the chance that the actual costs will be either greater orless than what has been estimated. They are only likely tobeless in a case where for some reason contested issues fallaway.The actual costs are likely tobe greater in a complex casewherenewpointsmaybe raised by the Court and need to be researched during the progressof the trial.
38. A t this stage in the legal proceedings itisnotpossible to provide a definitive figurefor the costsof defending the action. Howeverwhenthe application for security for costs wasmade in the spring of2002, costs of £1.5 million had already beenincurredand the projected coststothe end of the trial inthe Royal Court were projected tobring the total cost to the orderof £3m.HearingsintheCourtofAppeal and the Privy Councilcouldconceivablydoubletheseamounts.
39. T h eseare the costswhichthedefendantsincurbyway of legal and otherprofessionalfees.Thereis however a hiddencost in continuing litigation. That cost stems from thefact that it is thepublicpurse whichmaintainsandfunds the Courts and the judicialsystem.If the action wereto proceed to Privy Council the total "hidden cost" could easily amount to £100,000or more.
40. T o this indirect cost would have tobeaddedthe unquantifiable cost of the time which will necessarily be spentby officers of the Policy andResourcesCommittee and membersoftheLawOfficers' Department, including in particular the two Law Officers themselves, which will be taken up in theusual liaising whichgoesonbetween a lawyerand his client duringthecourse of a protracted trial.
41. I t will beobvious from these figures that the total cost to the public of protracted litigation is very

substantial indeed, and can never be recovered in any way whatsoever, regardless of who wins or loses.

42. B a sedon the estimate produced for the securityofcosts application and taking together they could equate to the value to the States of the land which it is proposed wouldbepassed to LesPas as the basis for settlement.

Cost of Losing

43. If t he States lose, the position is infinitely worse.Thepublic will lose massive land holdings. The hatched area on Appendix 2. shows the extent of the claim. It speaks for itself. The valueofthese holdings to the public are very significant and have been equated to thesizeof the States Strategic Reserveatmany hundreds of millions ofpounds. Significant public assets (e.g. thePower Station) aresituatedon this land.
44. In addition the States will be liable as before for their owncosts, and the public will be liable as before for the costs ofproviding the Courts to hear the case.The defendants will also inevitably be ordered to pay the costsof the successful plaintiff. It wouldbe unrealistic toexpectthesetobe significantly different from the costs incurred by the defendants.As an estimate this could double the estimated States costs.
45. F u rthermore, it would become necessary to assess the compensation for the area of contested foreshore whichwasacquiredbycompulsorypurchasein1998/9.Itisnoexaggeration to say that the Arbitration could  be as  long-running as  the  litigation,  and  would  give  rise  to  professional costs in respect  of valuations and legal representation which would be very considerableindeed.

Conclusion

46. T h e Committeerecommends this agreement to the States. Itdoessoon the basisof the advice whichit has  received from  its  professional advisers.  That  advice  was not  simply  rubber stamped by the Committee. It has been the subject of protracted and searching discussion among Committeemembers, and their ultimate conclusion is that the interests of the Public are best served by this agreement.
47. T h e LawOfficers have been concerned in legaladvicegiven to the Committee in connection with the possible settlement of this litigation andthe Solicitor General will be onhandtogive advice to the States Assembly when this proposition comes to bedebated.
48. T h e Committeerecognises that the Assembly will want to receive the same advice as the Committeehas received. TheCommittee is able to state that both the Law OfficersandAdvocate Binnington have recommended this agreementasanappropriatesettlementof the litigation having regard to the extended time it couldtake, the cost involved in the litigation whichmaybe irrecoverable regardless ofwhowins and the risks involved inthe litigation. In addition,theCommittee will ask the States to hold thedebatein camera. This will enable the States to advise fully onall the legal aspects without falling foulof Standing Order 24, which provides that reference shall not be madeto a case pending in a Court of Law in such a way as,in the opinion of the Bailiff , might prejudice the case.
49. T h e financial implications are setoutaboveandthere are nomanpower implications.

25th July 2003

APPENDIX 1

THIS AGREEMENT is made the Twenty-seventh day of May 2003 BY & BETWEEN LES PAS HOLDINGS LIMITED (hereinafter referred to as "the Plaintiff"), HER MAJESTY'S RECEIVER GENERAL (hereinafter referred to as "the First Defendant"), THE POLICY & RESOURCES COMMITTEE OF THE STATES OF JERSEY and RICHARD ARTHUR FALLE as Seigneur of the Fief de la Fosse (hereinafter referred to as "the Seigneur").

WHEREAS:

1. B y summonsdated 15 December1989the Plaintiff commenced an action "pour exhiber titre" against the First Defendantand the Greffier of the States ofJersey for the PublicasSecondDefendant in respect of certain areasofforeshore situate on the southcoastof Jersey the saidareasbeingmore particularly set out in the saidsummons (such proceedings being hereinafter referred to as "the litigation"). The trial ofthe litigation wasduetocommenceonMonday 19 May2003 (the "Hearing") and currently stands adjourned.
2. S u bjectas is hereinafter provided the parties have agreed tocompromise the litigation ontheterms hereinafter setout:.
3. T h e Plaintiff has agreedtocompromise the litigation on the basis that the Site (as hereinafterdefined) will prior toconveyancebe the subject of confirmationin principle from the EnvironmentandPublicServices Committee for thedevelopment thereon of no fewer than 100three-bedroomapartments with acceptable underground car-parking and from the HousingCommittee that anyoccupancy conditions in respect of units ofaccommodation to be constructed on the Site shall provide fornoless than 90%beingoccupied by persons qualified underregulations(a) to (j) oftheHousing(General Provisions) (Jersey) Regulations 1970 (as amended)andtheremaining10% thereof pursuant to regulations (a) to(k)thereof.
4. It isnoted and agreed that no capital orincometaxes shall be payable by the Plaintiff or its nominee in respect of the compromiseofthese proceedings or upon the transfer of the Site to the Plaintiff or its nominee.
5. T h e Policy andResourcesCommittee have notified the Plaintiff that the policy of the Environment and Public Services Committee hasbeen to adopt a standard of a maximumofonecar-parkingspaceper dwelling at the Waterfront, given its proximityto the centre ofSt. Helier andthe need to minimise the removal of tipped material from the area.

NOW THEREFORE IT IS AGREED AS FOLLOWS: Obligations of the States

1. W i thin threeweeksof the later of the approval ofthe States of Jersey (hereinafter referred to as "the States") to a proposition recommending implementation of this Agreement and the approval of His Excellency the Lieutenant Governoronbehalfof the Crown totheterms contained herein

1. th e States shall transfer on behalf of the Public of this Island to the Plaintiff or tosuch persons or entities as the Plaintiff maynominate (hereinafter referred to as "its nominee") in perpetuity and free of all chargesencumbrances restrictive orotheronerous covenants and servitudes infavour of third parties save as set outinparagraph (b) belowby deed of gift passed before the Royal Court of Jersey ("the passing of the conveyance") all that areaof land generally described as sites 16 and17 in theStHelier Waterfront Planning Plan Map 2 preparedbytheWaterfront Enterprise Board Limited and more particularly located within theco-ordinate and descriptive definition of boundary pointsshownondrawingno.304 a copy of whichdocumentis attached hereto as annexure 1 (sucharea of land being hereinafter referred toas "the Site"), a copy ofthesaid plan (Map 2)beingattachedas annexure 2 hereto, the Site to be otherwise at the date ofconveyance in the samephysicalstateand condition at the date of transfer asitisatthe date ofexecutionof this

Agreement.

2. T h e transfer of the Site to the Plaintiff or its nominee shall bycontract in standard form but subject to the covenants referred to in annexure 6 convey the freehold thereof with the benefit of all such consents from the EnvironmentandPublicServicesCommittee the HousingCommittee and the EconomicDevelopmentCommitteeas are envisaged in Paragraphs 7 (b) (c) and (d) hereof and further with the benefit of all such rights servitudes and servicesasmay be necessary for the development and thereafter the subsequent full use and enjoyment of the site as anticipated at Recital C.abovebythe Plaintiff or, as thecase may be, its nominee and their successors in title.

2. T h e stamp duty payable onthe transfer of the Site as provided in paragraph 1 hereof shall beborneby the States.
3. I n t heevent that the Plaintiff or its nominee shall obtain development permission for the construction of a one ortwo storey underground car parkon the Site the States shall bear thecostofany tipping charges relating to the disposalofspoiloff-sitewhich the Plaintiff or its nomineemay reasonably incur in respect of such excavationsasmaybe necessary tocompletesuch construction.

Obligations of the Plaintiff

4. T h e Plaintiff shallwithin 7 daysof the passingof the conveyance:

1. co n sent to the discontinuance of the litigation withnoorderas to costs;
2. co  nfirm that it will notmake any future claim in respect of any matters arising from the litigation and will release theCrownandthe States from any further actions claims demands suits or proceedings whatsoeverconcerning the same save insofar as suchmay arise outof the termsof this Agreement;
3. w i thdraw its claimforcompensationpursuant to theorderof the Royal Court dated22 July 1998 in respect of the compulsorypurchase proceedings commenced by Representation dated29May 1998 and confirm that it willnotmakeany future claim in respect thereof.

5. I n o rder to facilitate the Plaintiff's obligations underparagraph 4 hereof,the Plaintiff shall:

1. o n the execution hereof deliver to the Defendants'Advocatesexecuteddocumentsin the form of the drafts attached hereto asannexures 3 to 5.Thesedocumentsare to be held to thePlaintiff's order pending the passing of the conveyance and thereafter whereupon the Plaintiff shall irrevocably release them to the FirstDefendantand to the SecondDefendant with authority to date anddo all things necessary to complete thesesaiddocuments;and
2. ta k e such further steps asarereasonably necessary or requested, including without limitation the entering into ofdocuments in substitution for those attachedheretoasannexures 3 and 5.

Obligations of the Seigneur

6. T h e Seigneur hereby:

1. c o nfirms that he has noclaims to ownershipor any other rights ofany nature whatsoever in respect oftheforeshoreof the Fief de la Fossein his capacity of Seigneur of the said Fief and does releases the Crown and the States from all and any actions claims demands suits or proceedings whatsoever concerning the same;
2. u n dertakes that inanytransferbyor from himofallor any of the rightsor title of the Seigneur of the said Fief he will not purport totransfer to the transferee any claims toownershiporanyother rights of any nature whatsoeverinrespectoftheforeshoreof the said Fief.

Conditions precedent to the obligations contained in paragraphs 1 to 6 hereof

7. T h i s agreementis further conditional upon:

1. th e lodging of the proposition referred to inparagraph 1 hereof by the Policy andResources Committee by30 June 2003;
2. co n firmation in principle from the Environmentand Public ServicesCommittee to the Plaintiff or its nominee for the developmentof the Site by the creation ofnofewer than 100three-bedroom apartments and acceptable undergroundcar-parkingor such otherconsentin principle as the Plaintiff may confirm tobe acceptable in lieu thereof prior to 31August2003 (it being provided and it is acknowledgedbythe Plaintiff, that its subsequent applications for developmentof the Site shall meet all usualrequirements for such applications and that subject to the Plaintiff'susual rights of appeal in respect thereof the said Committee shallbe entitled to attach such conditionsas it maythink fit to the said consent); and
3. C o nsentby the HousingCommitteeof the States to thetransferof the Site by the States to the Plaintiff or its nomineeandconfirmation from theHousing Committee to the Plaintiff that any occupancyconditionsinrespectofunitsofaccommodation to be constructed on the Site on the transfer of the Site to the Plaintiff or its nomineeshall provide for no less than 90% being occupiedby persons qualified underregulations (a) to (j) of the Housing(General Provisions) (Jersey) Regulations 1970 (as amended) and the remaining 10% thereof pursuant to regulations
   1. to(k)thereof;
4. a l etter of comfort in relation to the developmentofthe Site from the EconomicDevelopment Committee pursuant to the RegulationofUndertakings and Development(Jersey)Law,1975 with anassurance that a future consent will attach only standard and reasonable conditions and will notunreasonably delay thedevelopment of the Site;
5. ap p rovalby the States of the proposition referredto in paragraph 1 hereof;
6. a g reement by His Excellency the Lieutenant Governor on behalf of the Crown to the discontinuance of the proceedings on the terms hereof;
7. ag reement between the Plaintiff and the PolicyandResources Committee as to therelevantvalue of the site for stamp duty purposes prior to 30June2003.

8. I n t heevent that the conditions referred to inparagraph 7 (a) and (g) hereof shall not have been satisfied on orby 30 June2003 this Agreement shall be null and void and nopartyheretomay rely on the terms hereof foranypurposewhatsoever.In such event any of the Plaintiff, the FirstDefendantor the Second Defendantmay thereafter ontwentyfourhours' prior notice to the other parties apply to the Royal Court for thecontinuationof the Hearing.
9. I n t he event that the conditions referred to in paragraph 7 (b), (c)and (d) hereoforany of them shall not have been satisfied on or by31August2003 and those in paragraph 7(e) and (f) by30September2003 this Agreementshallbe null andvoidand no party hereto mayrelyonthetermshereof for any purpose whatsoever. In such event any of the Plaintiff, the First Defendant or the Second Defendant may thereafter on twenty four hours' prior notice to the other parties apply to the Royal Court for the continuation of the Hearing.
10. A l l parties agree that they will take all reasonable steps to ensure:

1. th a t the conditions referred to in paragraph 7 hereofare satisfied;
2. th a t the passing of the conveyance is not delayed orprejudiced;

3. th e RoyalCourt grants such adjournments as are necessaryfor the purposes of this Agreement.

11. T h e Plaintiff shall request the confirmation referred to inparagraph 7(b) hereof and the consentand letter of comfort referred to inparagraph 7(c) and (d) hereof on or by 7 June 2003and the Policy and Resources Committee shall forthwithafter the execution of this Agreementrequest the EnvironmentandPublic Services Committee the Housing Committee and the EconomicDevelopment Committee respectively to considerandprocess such requests with all reasonable expedition.
12. It i s acknowledged by the parties hereto that the Plaintiff intendstoseek clarification as to the principles upon which receipt by it or its nomineeofthe Site and its subsequentdisposalmaybe liable totaxation. In theevent that such principles areregardedby the Plaintiff asunfavourable then the Plaintiff shallhave the right by written notice to the Policy and ResourcesCommittee, such notice tobe received onorby close ofbusinesson23 June 2003, to cancel this Agreement in whichcase this Agreement shall be null and void andnopartymay rely upon thetermshereof for any purpose whatsoever. In sucheventanyof the Plaintiff, the FirstDefendantor the SecondDefendantmay thereafter ontwenty four hours' prior notice to the other parties apply to the Royal Court forthecontinuationof the hearing.
13. T h e PolicyandResourcesCommittee shall invite the States to debate the proposition referred to in paragraph 1 hereof in camera.
14. T h e parties hereto will at all materialtimes in relation to this Agreement act in good faith. Confidentiality
15. T h e Plaintiff and the Seigneur acknowledge that the existence andtermsof this Agreementareuntilthe passing of the conveyance confidential to the parties andundertake not to disclose any oftheseprovisions to any person not a party save asmay be necessary for the purposes of implementation of this Agreement and save if compelled to do sobyanycourtor authority ofcompetent jurisdiction it beingnevertheless provided that disclosure for specific purposesmaybe permitted with the express consent of all of the parties hereto Without prejudice to theforegoing, the Plaintiff and the Seigneur further undertake that save for a disclosure made to theRoyal Court they will procure that any disclosure hereof will only be made subject to the disclosee first undertaking in like terms to thosesetout in this paragraph to keep the existence and termsof this Agreement confidential. This clause shall continue to subsist notwithstanding that this Agreementshallhavebecomenull and void pursuant to the terms of this Agreement.
16. T h e Policy andResourcesCommittee, the Plaintiff and/or the Seigneur maybyprior written consentof the parties hereto issue joint pressreleasesonany subject including a statement to the effect that the parties are pleased to announce a settlement which reflects andacknowledges Les Pas' longstanding interest indevelopmentat the Waterfront. The Policy and ResourcesCommittee agree touse their best endeavours toreachagreement with the Plaintiff andtheSeigneuras to a joint pressrelease in the event of publicity hostile to the Plaintiff and/or the Seigneur.

Assignment

17. T h isAgreementshallbebindinguponandenure for the benefit ofthe States of Jersey and the heirsand successors of the parties butshallnotbe assignable other than onceby the Plaintiff to its nominee.

SIGNED on behalf of LES PAS HOLDINGS [T. Scott ]

SIGNED on behalf of

THE POLICY & RESOURCES COMMITTEE

OF THE STATES OF JERSEY

[F. Walker ]

SIGNED on behalf of

HER MAJESTY'S RECEIVER GENERAL [C.Woodrow]

SIGNED by

RICHARD ARTHUR FALLE [R.A.Falle]

File No: PL 95/112

IN THE ROYAL COURT OF JERSEY (Heritage Division)

Plaintiff

Between: LES PAS HOLDINGS LIMITED And: (1) H M RECEIVER GENERAL

FOR HER MAJESTY

And: (2) THE GREFFIER OF THE STATES OF

JERSEY

FOR THE PUBLIC Defendants

LETTER OF CONSENT

To the Judicial Greffier, Royal Court House, Royal Square, St Helier, Jersey JE1 1JG.

We, the advocates for the parties herein, hereby consent on the basis of instructions received from our respective clients, to the discontinuance of the proceedings herein, with no other orders made, whether as to costs or otherwise.

We should be obliged if you would kindly issue an Acte of Court reflecting this discontinuance and its terms.

. .. Plaintiff's Advocate Defendants' Advocate

Carey Olsen Mourant du Feu & Jeune 47 Esplanade 22 Grenville Street

St Helier St Helier

Jersey Jersey

JE1 0BD JE4 8PX

(JK) (ARB)

THIS INSTRUMENT OF RELEASE AND COVENANT is made the day of 2003 BY & BETWEEN LES PAS HOLDINGS LIMITED (hereinafter referred to as "the Plaintiff"), HER MAJESTY'S ACTING RECEIVER GENERAL FOR HER MAJESTY (hereinafter referred to as "the First Defendant"), THE GREFFIER OF THE STATES OF JERSEY (hereinafter referred to as "the Second Defendant") and RICHARD ARTHUR FALLE the Seigneur of the Fief de la Fosse (hereinafter referred to as "the Seigneur").

WHEREAS:

1. T h isInstrumenthas been executedbythe Plaintiff and the Seigneur in advanceofthe passing of the conveyance and will only become effective andenforceablewhen dated onorafter the passing of the conveyance.

AND IN THIS INSTRUMENT:

2. " t h e Agreement" means theagreementmadeon M a y 2 0 0 3 b etween the parties thereto and by which the parties haveagreedtocompromise the litigation on theterms therein set out;
3. w o rds and expressions defined in the Agreement shall have the meanings there assigned to them;
4. " c laims" means all the Plaintiff's and/or the Seigneur's present and future rightsorclaimsofany kind whatsoever which the Plaintiff and/or the Seigneur has, haveormay have against anyperson in respect of any of the facts or matters arising from the litigation;
5. " c o venantees" means the First Defendantand the SecondDefendant.

NOW THIS INSTRUMENT WITNESSES and it is hereby agreed and declared as follows, THAT:

1. T h e Plaintiff hereby releases each of the covenantees from all and any claims.
2. T h e Plaintiff agrees notto bring, to participate in, to pursue, directly or indirectly tofinance,or otherwise to assist,any actions, claims, demands,suitsor proceedings whatsoever in respect ofanyofthe facts or matters arising from the litigation save inso far as may arise on the termsoftheAgreement and if any such actions, claims, demands,suitsor proceedings are brought immediately to discontinue the same or as the casemaybeimmediatelyto cease such participation, pursuit, financing orassistance.
3. T h e Seigneur herebyreleaseseachofthecovenantees from all andanyclaims in respect of the foreshore of the Fief de la Fosse.
4. T h e Seigneur agreesnottobring,to participate in, to pursue, directly or indirectly to finance, orotherwise to assist,any actions, claims, demands,suitsor proceedings whatsoever in respectof the foreshore ofLa Fossesavein so farasmayarise on thetermsof the Agreement and ifany such actions,claims,demands, suits or proceedings are brought immediately to discontinue the same oras the casemaybeimmediately to cease such participation, pursuit, financing orassistance.
5. T h i s agreementshallbebinding upon andenure for the benefit of the States of Jersey and the heirs and successors of the parties butshallnotbe assignable.

IN WITNESS WHEREOF this Instrument has been duly executed by the parties hereto the day and year first above written.

SIGNED on behalf of

LES PAS HOLDINGS LIMITED

SIGNED on behalf of

HER MAJESTY'S RECEIVER GENERAL

SIGNED by

THE GREFFIER OF THE STATES

SIGNED by

RICHARD ARTHUR FALLE

IN THE ROYAL COURT OF JERSEY (Samedi Division)

BETWEEN AND

AND

THE GREFFIER OF THE STATES LES PAS HOLDINGS LIMITED WATERFRONT ENTERPRISE BOARD

Representor Respondent Party Intervening

LETTER OF CONSENT _____________________________________________________________________

To the Judicial Greffier, Royal Court House, Royal Square, St Helier, Jersey JE1 1JG

We, the advocates of the parties herein, hereby consent on the basis of instructions received from our respective clients, to an order being made in the following terms:

1. th  a t th e Greffier be permitted to withdraw his application for a Board of Arbitrators to be convened in the light of the parties' agreement that the amount of compensation to be paid by the Planning and Environment Committee for such interest (if any) as the Respondent mayhave had in the areas of foreshore the subject of the vesting order made on 22ndJuly 1998 be zero;

2. th  at  th ere be no further order as to costs.

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Representor's Advocate             R  e sp o n d e n t 's A d v o c a te        

Restrictive Covenants

1. A  cc ess to andegress from thedevelopmenton the Site for vehicles will come from the road to the eastof the Site.
2. M  a in servicestothe Site will enter from the roadto the eastof the Site.
3. G  ro undleveldevelopmentofthe Site may include retail,leisure, restaurant or similar active uses but shall not include uses that createnuisanceorexcessivenoise.
4. D  e velopmentof the Site shall not include the following uses : hotel, nightclub, health club (other than available toimmediate residents oftheSite)orcinemas.
5. T h e Public shall have the right to keep as established (onnormaltermsand conditions) any mains services and drainage apparatus servinganypropertybelongingtoit or to be retained byit generally in thearea and whichmay currently run beneath and across the Site, the Plaintiff or its nomineehaving the right (on normalterms and conditions) to relocate such servicesand apparatus to another areaof the Site orbeyond the boundaries of the same(subjecttotheapprovaloftherelevant authorities) at its owncost.
6. A   s tripof land 3.5 metres wide totheSouthEastof the Site shallnotbedevelopedabovegroundlevel save forlandscapingand/or a groundlevel footpath and shallbe subject to public access.